Shiv Kumar Tripathi vs The Central Bank Of India And 3 Ors.
2021 Latest Caselaw 4222 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 33
 

 
Case :- WRIT - A No. - 19483 of 2015
 

 
Petitioner :- Shiv Kumar Tripathi
 
Respondent :- The Central Bank Of India And 3 Ors.
 
Counsel for Petitioner :- Rakesh Sinha,Jainendra Pandey,Jwala Kumar Dwivedi,Mohd Zubair,Ramesh Chandra Pandey,Ran Vijay Singh
 
Counsel for Respondent :- K.R. Singh Jadon,S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This writ petition is directed against an order dated 20.8.2014, passed by the Deputy Regional Manager, Central Bank of India, whereby petitioner's claim for payment of increment for the year 1983, 1984 and 1985 has been disallowed, and petitioner's representation dated 12.8.2013 is rejected. This order has been passed pursuant to a direction issued by this Court on 11.12.2013, in Writ Petition No.7482 (S/S) of 2013, for consideration of petitioner's claim.

2. Writ petition was entertained and time was granted to the respondents to file a counter affidavit on 17.4.2015. No counter affidavit has been filed. This Court on 5.3.2020 granted three weeks' and no more time to file a counter affidavit. The matter has been adjourned even thereafter for a period of more than a year, but no counter affidavit has been filed. In such circumstances, writ petition is taken up for hearing on the basis of averments made in the writ petition by applying the doctrine of non-traverse.

3. I have heard Sri Jainendra Pandey, learned Counsel for the petitioner and Sri Vishnu Pratap, learned counsel appearing for the Central Bank of India. Learned counsel for the respondent Bank has placed the facts in detail and also cited various judgments in support of the impugned action, which shall be dealt with in this judgment.

4. Facts, as have been given rise to filing of the present writ petition are that while petitioner was continuing in employment of the Bank disciplinary action was initiated against him by placing him under suspension in the year 1982. Two charges were levelled against the petitioner in the enquiry. Ultimately an order of dismissal from service came to be passed against the petitioner which was affirmed in appeal on 18.2.1986. Aggrieved by the two orders petitioner preferred Writ Petition No.5197 (S/S) of 1986. The Lucknow Bench of this Court allowed the writ petition by a detailed judgement dated 18.12.2003, operative portion whereof is reproduced hereinafter:-

"In view of the above, it cannot be said that the act committed by the petitioner which is allegedly two charges against him, can be termed as wrong doing by him. Therefore, the impugned order is not sustainable in the eye of law.

In the result, the writ petition is allowed. The impugned order of removal from service dated 27.3.1985 and appellate order dated 18.2.1986 are quashed. A writ in the nature of mandamus is issued commanding the opposite parties to reinstate the petitioner in service within a period of one month from the date of production of a certified copy of this order immediately. It is also directed that the petitioner shall be entitled to get 50% of arrears of back wages/salary in view of the decision given in the case of N K Musafir Yadav (supra). However, in case he is not reinstated in service within the aforesaid period, the petitioner shall be entitled to get salary with effect from expiry of one month's period till the date of his reinstatement."

5. This order was put to challenge by the Bank in Special Appeal No.199 (S/B) of 2004. The order of learned Single Judge was upheld subject to certain modification in the relief clause, which is reproduced hereinafter:-

"We are of the opinion that the Bank was wholly wrong in the proceeding with the departmental enquiry, and in seeking so defend the writ petition and also in preferring this unnecessary appeal, and as such the first court's order has not taken effect; the writ petitioner was not allowed to join within one month of the first court's order but was completed to go on retirement, because of pendency of this wrongfully filled appeal.

Since we upheld the judgment of the court below, we order and direct that the writ petitioner be treated as in service and discharging duties throughout until his age of superannuation on 31.1.2004. He could not render his services, because he was not allowed to do so; being forced to sit at home is usually an additional punishment. The arrears on the basis ordered by the first court shall be paid by a one time payment by the bank to the writ petitioner-respondent within a fortnight from the date hereof. The retiral benefits, which are in arrears, will be calculated on the basis of full and complete discharge of service on 31.1.2004 on demand basis and another none time payment for all such arrears will be made by the appellant bank to the writ petitioner respondent also within the same time i.e. within a fortnight from the date hereof. The current pensionary benefits and other retiral benefits will be made to the writ petitioner-respondent regularly from today without any delay.

It, however, the payment as ordered is not made punctually on the above basis, the writ petitioner will be entitled to 100% arrears salary from the beginning i.e. from 1986 onwards. At the time of making payment, if those are made punctually, the bank will calculation on the basis of 50% arrears until 18.1.2004 and 100% until 31.1.2004 but if the payment is not punctually made the calculation shall be 100% from 1986 until the end of period.

We are also of the opinion that the attitude of the bank has all through been wrongful, and as such the Bank should bear the costs of the writ petitioner both in the court below and before us and we assess such costs leniently at Rs.10,000/-. Such costs paid within a fortnight also.

The appeal stand disposed of accordingly."

6. The respondent Bank released various amounts to the petitioner in purported compliance of the writ court's judgment whereafter a contempt petition was initiated by the petitioner against the officers of the Bank, which was dismissed with the observation that the officers of the Bank have substantially complied with the order of the writ court. Operative portion of the order passed in contempt petition dated 9.4.2008 reads as under:-

"In my opinion the submission of the learned counsel for the applicant is benefit of merit. The opposite parties have substantially complied with the order of the writ court and has paid the arrears of salary within the stipulated period of two weeks.

In view of the aforesaid, this Court is of the opinion that substantial compliance of the order of the appellate court has now been made by the opposite parties. Consequently notices are discharged. Contempt proceedings are dropped and the contempt petition is dismissed.

It is however, clarified that in the event the applicant is still aggrieved by the wrong calculation of the arrears of salary as indicated by the judgment of the appellate court dated 23.8.2005, it would be open to the applicant to raise an industrial dispute under the Industrial Disputes Act."

7. A special appeal filed against the aforesaid order was also dismissed, whereafter the matter taken to the Supreme Court and the Court is informed by Sri Vishnu Pratap, appearing for the respondent Bank that such S.L.P. has also been dismissed. It is thereafter that the petitioner made a representation raising a grievance about denial of increments for the year 1983, 1984 and 1985 while computing retiral benefits payable to the petitioner, which allegedly resulted in incorrect fixation of his pension etc. This Court on 11th December, 2003 directed such representation to be considered by the Bank. It is in this background that the order impugned dated 20th August, 2014 has been passed. The order impugned records that the petitioner was placed under suspension on 22nd March, 1982 and ultimately was removed from service, and therefore, he has not worked during the period 1983 to 1985, and as such by virtue of Clause 5.4(b) of the office order, the petitioner is not entitled to increment for the period in question. Aggrieved by this order petitioner is before this Court.

8. A subsequent order dated 1.9.2014 has also been challenged, according to which all dues payable in terms of the order passed by the writ court has already been paid and since the contempt petition has also been rejected, therefore, no further amount is due and payable to petitioner.

9. Learned counsel for the petitioner states that the disciplinary action against the petitioner was on account of two charges levelled against him, both of which have been found by this Court not to constitute an act of misconduct and consequently the order of punishment has been set aside. Submission is that although 50% back wages alone has been allowed, but the relief of continuity of service since has been protected and the order of punishment has been quashed, therefore, petitioner's working in law would have to be presumed for the year 1983, 1984 and 1985 and the denial of increment for these years in the facts and circumstances is wholly arbitrary.

10. Sri Vishnu Pratap, appearing for the respondent Bank submits that the petitioner was paid all dues that were payable to him and the contempt petition was also dismissed in the year 2008 itself. It is also stated that a review, special appeal and S.L.P. arising out of contempt matter was also dismissed. It is urged that by virtue of Article 7 of the Schedule appended to the Limitation Act, 1963 the limitation for raising a claim in respect of payment of increment is three years and that having expired, raising of grievance about denial of increment is the year 2013 is barred by limitation. Learned counsel for the Bank places reliance upon a judgment of the Supreme Court in the case of N.M. Siddique Vs. Union of India, reported in AIR 1978 SC 386, as also a previous judgment in the case of Balvantray Ratilal Patel Vs. The State of Maharashra, reported in AIR 1968 SC 800, to submit that the petitioner having not worked during the period in question would not be entitled to increment. A later judgment of the Supreme Court in the case of Union of India Vs. R.K. Chopra, reported in 2010 (1) SC 589, has also been relied upon to resist the claim of petitioner.

11. Facts, as have been noticed above are not in issue. It remains a fact that petitioner was dismissed from service on two specific charges levelled against him which were not found to constitute an act of misconduct. It is also noticed that he was placed under suspension in the year 1982 and ultimately dismissed from service in the year 1986. Petitioner has not worked between the period 1982 to 1985. The question is as to whether this period can be excluded, in law to deny payment of increment to petitioner, as a categorical finding is returned by this Court that none of the two charges levelled against the petitioner constitute act of misconduct and set aside the order of punishment.

12. The writ court vide its judgment dated 18.2.2003 has returned a categorical finding that none of the two charges levelled against the petitioner are proved. The order of punishment as also the appellate order, consequently, have been quashed. This order has been affirmed in appeal. No further challenge to the order passed by the Division Bench is made by the Bank before the Supreme Court. In such circumstances, the petitioner in law would be treated innocent and all the benefits which have been denied to him on account of the disciplinary proceedings or the order of punishment would have to be restored to him in law.

13. So far as the grant of relief of 50% back wages is concerned, law is settled that even if the order of termination is set aside, the grant of back wages is not a matter of routine and it is the discretion of the Court to examine as to what extent the back wages are to be allowed. Since the petitioner had not worked the Court has restricted the relief of back wages to the extent of 50%. This would not mean that all other service benefits, which were due and payable to petitioner, would be denied.

14. So far as filing of contempt petition and its dismissal is concerned, it is apparent from the order passed by the contempt court that the Bank has been found to have substantially complied with the order of the writ court. Law is settled that for for a contempt to succeed against contemnor, the act will have to be complained of willful and intentional. Contempt otherwise is between the contemnor and the Court may decline to proceed in contempt if the act is not wilful or there is substantial compliance of the order. None of the rights of the petitioner can be said to have been denied, merely because the contempt petition was dismissed.

15. The argument of learned counsel for the Bank relying upon the provisions of Article 7 of the Schedule appended to the Limitation Act, 1963 is concerned, it would be worth noticing that denial of increment to the petitioner would adversely affect not only the increment due and payable to him, but also affect the fixation of pension payable to the petitioner. Since the payment of pension is a recurring cause, therefore, Article 7 of the Schedule appended to the Limitation Act, 1963 would clearly not be attracted in the facts of the present case.

16. So far as the judgments cited on behalf of the Bank are concerned, the first judgment of the Supreme Court in the case of Balvantray Ratilal Patel (supra) was delivered on district facts where suspension and the right to receive salary during such period of suspension. The observations of the Court relied upon by the respondents in the said judgment are reproduced hereinafter:-

"Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. This principle of law of master and servant is well-established: (See Hanley v. Pease & Partners, Ltd., (4) Wallwork v. Fielding, (5) and the judgment of Cotton, L. J. in Boston Deep Sea Fishing and Ice Co. v. Ansell) (6). It is equally well-settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension."

17. The above observations of the Supreme Court will have no bearing on the controversy raised in the present writ petition, inasmuch as the order of suspension in the facts of the present case has lost its efficacy, as it urged with the order of punishment which is set aside by the Court. The relief, which is granted by the Court, clearly will determine the rights of the parties and not the rules relating to suspension.

18. So far as the observation of the Supreme Court made in para 13 in the case of N.M. Siddique (supra), which is relied upon by the counsel for the Bank also have no applicability in view of the specific finding returned by this Court. Denial of increment, in the facts of the present case, since adversely affects the payment of pension also, as such it constitutes a recurring amount. The judgment of the Supreme Court in the case of R.K. Chopra (supra) also is clearly distinguishable on facts.

19. In view of the fact that order of punishment passed against the petitioner has already been set aside with a categorical finding that none of the two charges make out a case of misconduct against the petitioner, the petitioner would be entitled to all consequential benefits as are admissible in law. The working of petitioner for the year 1983 to 1985 would be presumed to exist in law, once the order of punishment itself is set aside. Payment of increment is a benefit which enures to an employee on account of his working in the employment itself. Petitioner's working for the period 1983 to 1985 in law would be presumed to exists. Once that be so, the denial of increment for the aforesaid three years in the facts and circumstances, therefore, cannot be sustained.

20. Writ petition, consequently, succeeds and is allowed. Orders dated 20.8.2014 and 1.9.2014 stands quashed. The respondent Bank is directed to allow the benefit of increment for the years 1983 to 1985 and re-determine the last wages drawn by the petitioner for the purposes of determination of his pension. The benefits of arrears of revised pension and other benefits would be released to petitioner, within a period of four months from the date of presentation of a copy of this order.

21. No order is passed as to costs.

Order Date :- 22.3.2021

Anil

(Ashwani Kumar Mishra, J.)